School of Human Resources and Labor Relations

5 Myths of the Americans with Disabilities Act (ADA)

Stacy Hickox

Michigan State University

hickoxs@msu.edu

517-432-7402

“I want future generations to know that we are a people who see our differences as a great gift, that we are a people who value the dignity and worth of every citizen – man and woman, young and old, black and white, Latino and Asian, immigrant and Native American, gay and straight, Americans with mental illness or physical disability.”

- President Barack Obama, Jan. 20, 2015

5 Myths of the ADA

Myth #1

The ADA is frequently misused by people with vague complaints or diagnoses.

ADA Protection of Applicant or

Employee

Life Activity must be“Substantially Limited”

• “Considerable” limitation

• Compare to average person in the general population

• Specific factors – Nature & severity of impairment

– Duration or expected duration of impairment

– Permanent or long term impact of or resulting from impairment

CASE Example: Limitations on Definition of Disability

• Employee with heart condition, pacemaker provided handyman services to employer

– performed all physical duties zealously & with no apparent restrictions

– Took leave after medical procedure

– Certified to return to work at time of discharge

Not a person with a disability

- Transitory limitation only

Myth 2The ADA forces employers to hire

unqualified individuals with disabilities.

Use Interview Process to Verify Qualifications

• Can you perform [these duties] with or without accommodation?

• If applicant says “yes”

– Applicant can still ask for accommodation later

– Employer can still send for medical exam

– If need is obvious or applicant discloses

=> employer can ask more specific questions about need & how she would perform requisite duties

• If applicant says “yes, I need accommodation…”

– Employer can ask for medical documentation

General Qualifications to Require forANY Employee

General duties that can be deemed essential:

1) Ability to perform essential job duties

1) Regular attendance

2) No current illegal drug use

3) No direct threat to employee or others

Myth #3Under the ADA, an employer cannot fire

an employee who has a disability.

You can discharge an employee with a disability for …

• Attendance

• Poor performance

• Posing a direct threat

Case Example: Attendance

• Employee suffering from depression, anxiety, post-traumatic stress disorder

• 3 unexcused absences => placed on performance improvement plan

– No unexcused absences for next 6 mo’s

• Employee hospitalized for several days after suicide attempt, unable to work since then

Discharged after use of FMLA leave

Employee is not a “qualified individual”=> discrimination claim dismissed

Myth #4

• Under the ADA, employers must give people with disabilities special privileges, known as accommodations.

Accommodation Process

• Interaction required …

– once employer knows of need for accommodation

• Employee request

• Need is obvious

• Obligation to inquire once impairment becomes known

• Documentation of Need

– Reasonable documentation of individual's entitlement to reasonable accommodation

– Confidentiality considerations

What can be reasonable?

• Access to application process

• Assistive technology or equipment, job coach, service animals

• Job Restructuring

– Nonessential job duties

• Time Off/Leave

• Flexible Schedule/Telework

– https://www.dol.gov/odep/WorkplaceFlexibility/

• Return to Work programs

– https://www.dol.gov/odep/return-to-work/

• Assistant Manager of Pizza Hut unable to work more than 40 hours/week after car accident.

• Managers generally work 50-55 hours per week.

• Manager responsible for supervising other staff while restaurant is open, open & closing restaurant (11 am to 10 pm)

• Managers also help hostess & servers as needed

• Can she be accommodated?

Reasonable Accommodation Hypothetical

Myth #5

The ADA places a financial burden on small businesses that cannot afford to make accommodations for individuals with disabilities.

Undue Hardship Defense

Undue

HardshipConsider

Facility

Overall

BusinessType of

Operation

Nature and Cost

of

Accommodation

•Resources of

•Number of People in

•Impact on

Costs can be considered, BUT• Relative to employer’s resources & benefit

to person with disability

• Costs are limited

– approximately 56% of accommodations have no associated costs

– approximately 37% of accommodations have onetime cost of $500 or less

– only 4% of accommodations result in ongoing expenses on an annual basis

• Tax benefits– https://www.irs.gov/businesses/small-businesses-self-employed/tax-

benefits-for-businesses-who-have-employees-with-disabilities

CASE Example on Undue Hardship

• Employee sought reinstatement after 13 weeks of leave

Holding

• Reinstatement would have been undue hardship

– Employer facing financial crisis that would have required layoffs

– Other employees deemed more essential to company

• Assistant Manager of Pizza Hut unable to work more than 40 hours/week after car accident.

• Even if accommodation of working no more than 40 hours is reasonable, could Pizza Hut show an undue hardship?– Managers generally work 50-55 hours per week.

– Manager responsible for supervising other staff while restaurant is open, open & closing restaurant (11 am to 10 pm)

– Managers also help hostess & servers as needed

Accommodation Hypothetical